dissenting:
I dissent from the majority opinion because I conclude that it is inconsistent with City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). As the majority here recognizes, the focus of our examination of Alameda Books is the opinion of Justice Kennedy, because there was no majority opinion and Justice Kennedy’s concurring opinion was the one that supported the Court’s judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
Like the four dissenters in Alameda Books, Justice Kennedy viewed the regulation of adult entertainment businesses to be content-related, because the businesses to be regulated are identified by the content of their speech. Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concurring). Yet Justice Kennedy agreed with City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), that a regulation that is “designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.” Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728.
Justice Kennedy, however, imposed important conditions as part of this intermediate scrutiny. The question in issue in Alameda Books was whether the city’s ordinance was invalid because the city did not study the secondary effects of the precise use being regulated, but relied on judicially approved precedent from other *1172jurisdictions. Justice Kennedy stated that this issue involved two questions:
First, what proposition does a city need to advance in order to sustain a secondary-effects ordinance? Second, how much evidence is required to support the proposition?
Id. at 449, 122 S.Ct. 1728. Unlike the plurality opinion, Justice Kennedy focused on the first question, and imposed requirements that are crucial to the present case. He elaborated:
[A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. The ordinance may identify the speech based on content, but only as a shorthand for identifying the secondary effects outside. A city may not assert that it mil reduce secondary effects by reducing speech in the same proportion.
Id. (emphasis added).
Applying this reasoning to the Los An-geles ordinance that prohibited two or more adult entertainment businesses from operating in the same building, Justice Kennedy made his point once again:
It is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech.
The analysis requires a few more steps. If two adult businesses are under the same roof, an ordinance requiring them to separate will have one of two results: One business will either move elsewhere or close. The city’s premise cannot be the latter. It is true that cutting adult speech in half would probably reduce secondary effects proportionately. But again, a promised proportional reduction does not suffice.
.... The claim, therefore, must be that this ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced.
Id. at 450-51, 122 S.Ct. 1728 (emphasis added). Having thus answered his first sub-question, Justice Kennedy then agreed with the plurality with regard to his second: There was sufficient evidence to support the proposition that forced dispersal of two such businesses was reasonably likely to reduce secondary effects at little cost to speech. Id. at 452-53, 122 S.Ct. 1728.
The closing-hours statute in issue here, however, proceeds on precisely the theory that Justice Kennedy found insupportable under the First Amendment. The theory is that adult entertainment establishments 1 create adverse secondary effects when they are in operation. If operation is prohibited for several hours each day, the undesirable secondary effects will be reduced accordingly. Unlike a dispersal regulation, the state’s instrument is not to move speech, but to stop it. And Justice Kennedy has informed us that “a city may not attack secondary effects indirectly by attacking speech.” Id. at 450, 122 S.Ct. 1728. A government similarly may not proceed on a theory that “it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449, 122 S.Ct. 1728. It would be hard to find a more exact description than this of Arizona’s closing hour regulation of adult entertainment establishments.
*1173The record in the present case cannot sustain any other theory than the impermissible one. The majority opinion candidly characterizes the pre-enactment support for the statute as “slim.” Indeed, it is so slim that I have grave doubts that it suffices under Renton without the gloss of Alameda Books. I need not address that point, however, because the record clearly fails to support a permissible theory of regulation under Justice Kennedy’s test in Alameda Books. The evidence in both the legislature and the district court was almost entirely concerned with secondary effects that are unrelated to the hours of occurrence. Studies of the effects of adult entertainment businesses on the crime rate were mentioned in legislative hearings, but none were put into the legislative record. A Minnesota study was said to have reported adverse effects from 24-hour operation of adult establishments, but the study was not produced to the legislature. A study by the city of Phoenix, Arizona, was briefly referred to as having explored the effect of nighttime operation of adult establishments but was said to be “inconclusive”; it also was not produced. Another reference was made to a study by Fulton County, Georgia (also not produced for the legislature), but its conclusions tended to show no disproportionate adverse effect on crime rate because of operation of adult entertainment businesses. See Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (11th Cir.2001) (describing Fulton County study). The focus of secondary effects in the record was on those effects generally, not on secondary effects caused by late-night operations, and certainly not on disproportionate secondary effects of late-night operations. Finally, there is a total absence of evidence anywhere in the record to support the existence of disproportionate secondary effects from operation on Sunday mornings before noon. (Indeed, the required closing on Sunday mornings might suggest to a reasonable observer that something other than the mere regulation of secondary effects was going on in the legislature, but I need not pursue that question here.)
As for the effect of the statute on speech, there is no question that speech is simply stopped during the hours of forced closure. Several affidavits filed in district court asserted that many customers of adult establishments held two jobs and could not patronize the establishments except during hours subject to the closure. Another stated that closure during the targeted hours caused a twenty-five percent decline in gross revenues of an adult establishment. All in all, the record overwhelmingly establishes that the closure, at best, achieves a one-for-one elimination of speech and secondary effects — a formula that fails to meet the requirements of the First Amendment as Justice Kennedy has stated them.
The majority opinion here addresses Justice Kennedy’s concurrence, but concludes that he did not mean his statements to apply to the present situation. The majority holds that Justice Kennedy meant no change in the Renton analysis because he said “the central holding of Renton is sound.” Id. at 448, 122 S.Ct. 1728. But that statement came after Justice Kennedy departed from Renton’s assumption that regulation of adult entertainment establishments to limit secondary effects was not content-based. Justice Kennedy stated that this fiction was not useful, and that it was better to admit that such regulations were content-based. Such an admission would normally call for review under a strict scrutiny, but Justice Kennedy did not. accept that consequence. It is with regard only to the standard of review that he then said: “[T]he central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be *1174subject to intermediate rather than strict scrutiny.” Id. To read this statement as a wholesale endorsement of an unmodified Renton analysis is to ignore context.2
The majority opinion also refers to Justice Kennedy’s statement that he feared the plurality opinion’s “application of Ren-ton might constitute a subtle expansion, with which I do not concur.” Id. at 445, 122 S.Ct. 1728. Here again, it over-reads Justice Kennedy’s statement to accept it as an endorsement of Renton without the gloss Justice Kennedy adds to the analysis, in his opinion. If Justice Kennedy thought that the Renton analysis was correct, except for its denomination of the ordinance as content-neutral, he could have stated that minor disagreement and joined all the rest of the plurality opinion. His major reason for writing was to establish that the plurality’s analysis was deficient because it did “not address how speech will fare under the city’s ordinance.” Id. at 450, 122 S.Ct. 1728. He then spends nearly all of the remainder of his opinion explaining his rule that a government cannot reduce secondary effects by reducing speech on a one-for-one basis. That is what Arizona has done here. I would take Justice Kennedy at his word and on this record would hold Arizona’s statute to be in violation of the First Amendment.
. I use the term “adult entertainment establishments” to refer to expressive activities such as those conducted by the plaintiffs. As the majority opinion points out, the statutory term “sexually-oriented businesses” includes escort services that presumably are not engaged in First Amendment-protected activity. My discussion does not relate to them.
. The majority opinion quotes the Tenth Circuit opinion in Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1239 n. 15 (10th Cir.2002), for the proposition that " 'nothing in ... Alameda Boolcs requires reconsideration' of the traditional Renton framework.” The Tenth Circuit’s statement, however, was that "nothing in ... Alameda Boolcs requires reconsideration of our conclusion as to the applicable standard of review.” Id. The Tenth Circuit was merely in agreement with Justice Kennedy that intermediate review was appropriate, not strict scrutiny as Z.J. Gifts was arguing. The Tenth Circuit said nothing about leaving the Renton "framework” intact.
Nor is the Seventh Circuit’s description of Justice Kennedy’s opinion, see Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 721 (7th Cir.2003), inconsistent with my reading of it.